HB 1191

CS

CHAMBER ACTION

1	The Utilities & Telecommunications Committee recommends the
2	following:
3
4	Council/Committee Substitute
5	Remove the entire bill and insert:
6	A bill to be entitled
7	An act relating to telecommunications service regulation;
8	amending s. 350.042, F.S.; specifying provisions for ex
9	parte communications procedures; creating s. 364.017,
10	F.S.; providing for ex parte communications relating to
11	Public Service Commission proceedings; directing the
12	commission to adopt rules to regulate such communications;
13	amending s. 364.051, F.S., relating to price regulation;
14	allowing certain local exchange telecommunications
15	companies to publish terms, conditions, and rates for
16	nonbasic services in lieu of maintaining tariffs with the
17	Public Service Commission; revising the notice requirement
18	for price changes to nonbasic services; removing a
19	provision that allows a company to elect that its basic
20	services be subject to the same regulatory treatment as
21	its nonbasic services; providing for a request from a
22	company to the Public Service Commission to make certain
23	reductions in its retail service quality requirements;
24	revising criteria for granting a petition to change
25	regulatory treatment of retail services; providing an
26	effective date.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1.  Subsection (1) of section 350.042, Florida
31	Statutes, is amended to read:
32	350.042  Ex parte communications.--
33	(1)  A commissioner should accord to every person who is
34	legally interested in a proceeding, or the person's lawyer, full
35	right to be heard according to law, and, except as otherwise
36	authorized by law, or specifically allowed in ss. 120.80(13)(d)
37	and 364.017, a commissioner shall neither initiate nor consider
38	ex parte communications concerning the merits, threat, or offer
39	of reward in any proceeding other than a proceeding under s.
40	120.54 or s. 120.565, workshops, or internal affairs meetings.
41	No individual shall discuss ex parte with a commissioner the
42	merits of any issue that he or she knows will be filed with the
43	commission within 90 days. The provisions of this subsection
44	shall not apply to commission staff.
45	Section 2.  Section 364.017, Florida Statutes, is created
46	to read:
47	364.017  Ex parte communications.--
48	(1)  To ensure the fairness and integrity of its
49	decisionmaking, the commission shall prescribe rules to regulate
50	ex parte presentations in commission proceedings. The rules
51	shall specify exempt proceedings in which ex parte presentations
52	may be made freely; permit-but-disclose proceedings in which ex
53	parte presentations to commission decisionmaking personnel are
54	permissible but subject to certain disclosure requirements; and
55	restricted proceedings in which ex parte presentations to and
56	from commission decisionmaking personnel are generally
57	prohibited.
58	(2)  In all proceedings, there shall be designated a period
59	of time prior to the date established for making a decision
60	during which all presentations or correspondence to commission
61	decisionmaking staff are prohibited. Exceptions to this
62	requirement shall be any presentation or correspondence
63	otherwise allowed by statute; any presentation that relates to
64	emergency situations involving public health, safety, and
65	welfare; and any presentation involving classified security
66	information.
67	(3)  A person who makes a written ex parte presentation
68	subject to this section shall, no later than the next business
69	day after the presentation, submit two copies of the
70	presentation to the commission's clerk under separate cover for
71	inclusion in the public record. The presentation and cover
72	letter shall clearly identify the proceeding to which it
73	relates, including the docket number, if any; shall indicate
74	that two copies have been submitted to the clerk; and must be
75	labeled as an ex parte presentation. A person who makes an oral
76	ex parte presentation subject to this section that presents data
77	or arguments not already reflected in that person's written
78	comments, memoranda, or other filings in that proceeding shall,
79	no later than the next business day after the presentation,
80	submit to the commission's clerk an original and one copy of a
81	memorandum which summarizes the new data or arguments. A copy of
82	the memorandum must also be submitted to the commissioners or
83	commission employees involved in the oral presentation. Any such
84	memoranda must contain a summary of the substance of the ex
85	parte presentation and not merely a listing of the subjects
86	discussed.
87	(4)  The commission's clerk shall place in the public file
88	or record of the proceeding written ex parte presentations and
89	memoranda reflecting oral ex parte presentations. The clerk
90	shall issue a public notice listing any written ex parte
91	presentations or written summaries of oral ex parte
92	presentations received by his or her office relating to any
93	permit-but-disclose proceeding. Such public notices should
94	generally be released at least twice per week.
95	(5)  For purposes of this section, the following
96	definitions shall apply:
97	(a)  "Decisionmaking personnel" means any member, officer,
98	or employee of the commission who is or may reasonably be
99	expected to be involved in formulating a substantive
100	recommendation or decision, rule, or order in a proceeding. Any
101	person who has been made a party to a proceeding or who
102	otherwise has been excluded from the decisionmaking process
103	shall not be treated as a decisionmaker with respect to that
104	proceeding, and any person designated as part of a separate
105	trial staff shall not be considered a decisionmaking person in
106	the designated proceeding.
107	(b)  "Ex parte presentation" means any presentation that,
108	if written, is not served on the parties of record to the
109	proceeding or, if oral, is made without advance notice to the
110	parties and without opportunity for the parties to be present.
111	(c)  "Presentation" means a communication directed to the
112	merits or outcome of a proceeding, including any attachments to
113	a written communication or documents shown in connection with an
114	oral presentation directed to the merits or outcome of a
115	proceeding. Excluded from this definition are inquiries
116	concerning compliance with procedural requirements if the
117	procedural matter is not an area of controversy in the
118	proceeding, statements made by decisionmakers that are limited
119	to providing publicly available information about pending
120	proceedings, and inquiries relating solely to the status of a
121	proceeding.
122	Section 3.  Subsections (5), (6), and (7) of section
123	364.051, Florida Statutes, are amended to read:
124	364.051  Price regulation.--
125	(5)  NONBASIC SERVICES.--Price regulation of nonbasic
126	services shall consist of the following:
127	(a)  Each company subject to this section shall, at its
128	option, maintain tariffs with the commission or otherwise
129	publicly publish containing the terms, conditions, and rates for
130	each of its nonbasic services, and may set or change, on 1 day's
131	15 days' notice, the rate for each of its nonbasic services,
132	except that a price increase for any nonbasic service category
133	shall not exceed 6 percent within a 12-month period until there
134	is another provider providing local telecommunications service
135	in an exchange area at which time the price for any nonbasic
136	service category may be increased in an amount not to exceed 20
137	percent within a 12-month period, and the rate shall be
138	presumptively valid. However, for purposes of this subsection,
139	the prices of:
140	1.  A voice-grade, flat-rate, multi-line business local
141	exchange service, including multiple individual lines, centrex
142	lines, private branch exchange trunks, and any associated
143	hunting services, that provides dial tone and local usage
144	necessary to place a call within a local exchange calling area;
145	and
146	2.  Telecommunications services provided under contract
147	service arrangements to the SUNCOM Network, as defined in
148	chapter 282,
149
150	shall be capped at the rates in effect on July 1, 1995, and such
151	rates shall not be increased prior to January 1, 2000; provided,
152	however, that a petition to increase such rates may be filed
153	pursuant to subsection (4) utilizing the standards set forth
154	therein. There shall be a flat-rate pricing option for multi-
155	line business local exchange service, and mandatory measured
156	service for multi-line business local exchange service shall not
157	be imposed. Nothing contained in this section shall prevent the
158	local exchange telecommunications company from meeting offerings
159	by any competitive provider of the same, or functionally
160	equivalent, nonbasic services in a specific geographic market or
161	to a specific customer by deaveraging the price of any nonbasic
162	service, packaging nonbasic services together or with basic
163	services, using volume discounts and term discounts, and
164	offering individual contracts. However, the local exchange
165	telecommunications company shall not engage in any
166	anticompetitive act or practice, nor unreasonably discriminate
167	among similarly situated customers.
168	(b)  The commission shall have continuing regulatory
169	oversight of nonbasic services for purposes of ensuring
170	resolution of service complaints, preventing cross-subsidization
171	of nonbasic services with revenues from basic services, and
172	ensuring that all providers are treated fairly in the
173	telecommunications market. The cost standard for determining
174	cross-subsidization is whether the total revenue from a nonbasic
175	service is less than the total long-run incremental cost of the
176	service. Total long-run incremental cost means service-specific
177	volume and nonvolume-sensitive costs.
178	(c)  The price charged to a consumer for a nonbasic service
179	shall cover the direct costs of providing the service and shall,
180	to the extent a cost is not included in the direct cost, include
181	as an imputed cost the price charged by the company to
182	competitors for any monopoly component used by a competitor in
183	the provision of its same or functionally equivalent service.
184	(6)  After a local exchange telecommunications company that
185	has more than 1 million access lines in service has reduced its
186	intrastate switched network access rates to parity, as defined
187	in s. 364.164(5), the local exchange telecommunications
188	company's basic local telecommunications service may, at the
189	company's election, be subject to the same regulatory treatment
190	as its nonbasic services. The company's retail service quality
191	requirements that are not already equal to the service quality
192	requirements imposed upon the competitive local exchange
193	telecommunications companies shall at the company's request to
194	the commission thereafter be no greater than those imposed upon
195	competitive local exchange telecommunications companies unless
196	the commission, within 120 days after the company's request
197	election, determines otherwise. In such event, the commission
198	may grant some reductions in service quality requirements in
199	some or all of the company's local calling areas. The commission
200	may not impose retail service quality requirements on
201	competitive local exchange telecommunications companies greater
202	than those existing on January 1, 2003.
203	(7)  After If a local exchange telecommunications company
204	that has more than 1 million access lines in service has reduced
205	its intrastate switched network access rates to parity, as
206	defined in s. 364.164(5) elects, pursuant to subsection (6), to
207	subject its retail basic local telecommunications services to
208	the same regulatory treatment as its nonbasic services, the
209	local exchange telecommunications company may petition the
210	commission for regulatory treatment of its retail services at a
211	level no greater than that imposed by the commission upon
212	competitive local exchange telecommunications companies. The
213	local exchange telecommunications company shall:
214	(a)  Show that granting the petition is in the public
215	interest;
216	(b)  Demonstrate that the competition faced by the company
217	is sufficient and sustainable to allow such competition to
218	supplant regulation by the commission; and
219	(c)(b)  Reduce its intrastate switched network access rates
220	to its local reciprocal interconnection rate upon the grant of
221	the petition.
222
223	The commission shall act upon such a petition within 9 months
224	after its filing with the commission. In making its
225	determination to either grant or deny the petition, the
226	commission shall determine the extent to which the level of
227	competition faced by the local exchange telecommunications
228	company permits and will continue to permit the company to have
229	its retail services regulated no differently than the
230	competitive local exchange telecommunications companies are then
231	being regulated. The commission may not increase the level of
232	regulation for competitive local exchange telecommunications
233	companies to a level greater than that which exists on the date
234	the local exchange telecommunications company files its
235	petition.
236	Section 4.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.